MCLawCh6notes - Chapter 6: Access to Chapter 6: Access to...

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Unformatted text preview: Chapter 6: Access to Chapter 6: Access to Places and Information
While the First Amendment grants a fundamental freedom to communicate and publish information, it does not grant a right of access for either the public or the press to information. Access to Private Property
Access to Private Property
• The Supreme Court has repeatedly ruled that the press is not guaranteed any greater right to information than the general public enjoys
– Therefore no right of access to private property
– Denying access to private land, or a government restricting travel to protect safety is not a concern of the First Amendment
– Newsworthiness does not invoke the First Amendment Access to Private Property
Access to Private Property • Trespass to Private Property – The intentional, unauthorized entry on property rightfully possessed by another
– Differs by state
• Most have two important provisions: – Rightful possession by the Π
– Unlawful entry upon such possession by the Δ – Under these laws, anyone, including the media, can be sued for the civil tort (trespass) and/or prosecuted under the criminal statutes
– Most common defense is consent
• Express
• Implied Access to Private Property
Access to Private Property
• Implied Consent – Usually applies to situations wherein the public is invited onto property for some specific purpose intended by the property owner
– If an individual goes beyond the scope of the implied consent given, he is trespassing
• See pp. 156­157 for examples of such – Similarly, express consent is also revoked if conduct goes beyond scope of the consent
– Just because given to one, doesn’t mean it extends to others • That said, some law enforcement authorities do have agreements with members of the media to whom they issue courtesy press passes (discretionary, no legal effect) Access to Private Property
Access to Private Property
• In some jurisdictions, obtaining entry by misrepresentation is trespass and can negate any consent obtained
• In most jurisdictions, secret videotaping or other covert behaviors involving subterfuge or snooping are trespass Access to Government Property
Access to Government Property • Merely because government property has a public purpose or use, does not mean that the whole or any part is open to the public or media
• Public and media access to government property is determined by the sovereign government based on whatever use best serves the property’s purpose and meets government standards (public safety, national security…)
• The First Amendment does not shield newspersons from liability for torts and crimes Access to Government Property
Access to Government Property
• That said, the Court has consistently ruled that once the media have gathered information, they may not be restrained from publishing it.
• Numerous “Access to Information” cases
– Usually involve competing interests:
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•
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• Governmental entity
Interests of public being served by entity
Interests of media attempting to gain access
General interests of the public – Examples include: • access to polling places, military facilities and jails, Access to Government Property
Access to Government Property
• Access to polling places – In 1988, a federal court ruled that polling places were traditional public fora and regulation at issue was content­
based because it involved discussion of voting (exit polling), so it applied the strict scrutiny standard of review and ruled the Washington state statute unconstitutional.
– Similar results in Georgia (1988)
– But, the Court upheld the constitutionality of a Tennessee state statute involving a 100­foot “campaign­free zone”
• Also applied strict scrutiny, but decided that conflicting freedoms were at odds and “the right to cast a ballot free from the taint of intimidation and fraud” was more important than the exercise of free speech, especially as the compromise of space from the entrance was reasonable Access to Government Property
Access to Government Property
• Access to military facilities – Authority in base commanders to restrict access is absolute
– The Court has heard several cases over the past four decades involving this issue and has consistently held that such restriction is not a violation of any constitutional amendment
– Greer v. Spock (1974) is most interesting (see p.161 in text) • Jails, Prisons and Inmates – The media have no greater right of access to prisons or prisoners than does the general public
– Neither the public nor the media have any specific First or Fourteenth Amendment right of access to specifically Access to Government Property
Access to Government Property
• While it is almost always OK to restrict access in the ways mentioned above, the Court has consistently ruled that once the government does grant access to its facilities, information and processes, it may not discriminate based on either the viewpoint of those seeking access or the content of their communication
• In addition, the government must also grant equal access to all who fit within the categories of individuals or groups it has admitted to its forum, and provide due process for those to whom it denies access (equality of access doctrine) Access to Governmental Access to Governmental Decision­Making Processes • Each branch of the government may independently decide how much access or information they give and may decide to whom they will grant such access
• Beginning in 1940s, pressure by the people to grant access to the government’s decision­making processes, increased by numerous media organizations, so…
• In 1976, the “Government in the Sunshine Act” became law – “…that the Public is entitled to the fullest practicable information regarding the decision­making processes of the Federal Government.” Federal Open Meetings Law
Federal Open Meetings Law
• All meetings of federal agencies must be open to public observation, except for 10 subject matters that justify private meetings (see p. 169 in text for the list) • Act applies only to the Executive branch
– Therefore leaves out Congress and the judiciary • Requires affected agencies to give one­week public notice of meetings (published in the Federal Register)
• There are also many state open meeting laws (all have some sort)
– Alabama was first in 1907
– Florida next in 1967 Access to Government Access to Government Information and Records • Freedom of Information Act (FOIA) – First passed in 1946 as the Administrative Procedure Act
– Required that every federal agency publish descriptions of members and activities and decisions, but only to those “persons properly and directly concerned” thereby leaving out the general public and the media
– So, in 1966 the FOIA was signed into law and entered as an amendment to the original Act
– Requirements of the Act are summarized in Ex. 6.4 on p. 172 of your text
– Again, only pertains to the Executive branch of government
Nine categories of exemptions(see p. 173 in text) Freedom of Information Act
Freedom of Information Act • After 1966, number of requests increased significantly
• By early 1990s, agencies are overwhelmed with requests
– All parties frustrated by delays and increasing costs • So, in 1996, Congress passed the Electronic Freedom of Information Act Amendments – Placed a lot of material online for easier and cheaper access
– Allows agencies to negotiate with requesters as to how and how much info will be produced • The Privacy Act of 1974 limited access to government information about individuals Misused Terminology
Misused Terminology • Privilege – Often misused; very specific meaning at law: • Particular types of communications or information about which certain parties cannot be forced to testify or to disclose materials relating to that information, because their communications are legally exempt from public scrutiny – Two types of privilege held over from British Common Law:
• Attorney­client (client owns the privilege)
• Spousal – On Constitutional privilege: • Fifth Amendment protection against self incrimination Misused Terminology
Misused Terminology
• Media professionals (reporters)often mistakenly believe that there is a press/reporter privilege. This is untrue. (See p. 176 in text for quote from Branzburg v. Hayes (1970) specifically addressing this issue) • Also federally created Presidential Privilege – Primarily concerned with statements associated with decision making by the president (a qualified privilege) • If a privilege exists, then communications that fall under it are confidential and disclosure cannot be compelled Misused Terminology
Misused Terminology
• See Ex. 6.6 on p. 179 of text for list of the only privileges that exist
• Immunity
– Refers to an exemption for certain people
– Under appropriate circumstances, these people are exempt from the normal operation of law, therefore do not have to come into court to answer for their actions or communications
• Can be criminal or civil or both
• Federal legislators, President, etc – but only within scope of official duties Misused Terminology
Misused Terminology • Prosecutorial Grants of Immunity – Given by federal or state prosecutors in criminal cases
– Testimony cannot be used against the witness
– Entirely discretionary • Shield Law (State Statutory Privileges)
– State statutes, two types: • Limited or qualified protection from testifying to some class of individuals (protect potential witnesses)
– Children, rape victims, media (reporter sources) • Limited media liability (or provides an affirmative defense) for defamation when there has been a retraction of a defamatory statement Misused Terminology
Misused Terminology • Affirmative Defense – A justification or legal excuse for some behavior or communication
– Δ is responsible to prove • No such thing as a “reporter’s privilege” – Court addressed it in Branzburg v. Hayes (1970) • And found no such privilege, even though the facts of the case involved a state media shield law
– However, state constitutions could grant such protection if state legislators so desired
– And, reporters do have the same protection as all witnesses, so court could apply a balancing test (see p. 185 in text) Misused Terminology
Misused Terminology • Subpoenas
– General • Requires person to appear to give testimony – Duces Tecum • Requires person to collect information and to appear with it • Contempt – Criminal • Used by government for gross/egregious behavior in failing to or refusing to respond to a subpoena (defiance of the court – punitive sanctions) – Civil • Purely coercive; some jail time & fines (usually after lots of ...
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